What can you say about the mind and heart of a federal prosecutor who insists on punishing a man for a crime he did not commit? These are the questions raised (answered, perhaps, only by Dostoevsky) by JOHN CAHER in this New York Law Journal piece.
Duarnis Saul Perez was born in the Dominican Republic and legally immigrated to the United States as a child. In 1988 his mother became a naturalized U.S. citizen, and by operation of law, Duarnis did too. But he didn't know it. His mother didn't know it. His lawyers didn't think to check it out. So, following a drug conviction, Perez was deported as an "aggravated felon." He came back, of course, and was then prosecuted for illegal re-entry, and sentenced to 57 months in prison. He served every day.
Slated for a second deportation, ICE (Immigration & Customs Enforcement) belatedly informed Perez of his U.S. citizenship status and terminated removal proceedings. But Perez was still serving out the terms of his supervised release for the illegal re-entry conviction.
Perez petitioned to have his criminal conviction vacated, naturally, on grounds of actual innocence. Only aliens, after all, can be charged with illegal re-entry, and Perez, at all relevant times, was and is a U.S. citizen.
Incredibly (except to those of us who go toe-to-toe with the feds every day,) the Assistant U.S. Attorney opposed the petition, on the theory that it was Perez' burden to figure out his citizenship status, and if he hadn't, well, too bad. Never mind the fact that the government had constructive, if not actual, notice of Perez' automatic citizenship the moment his mother naturalized.
Fortunately for Perez, and for us, U.S. District Judge Lawrence E. Kahn of Albany, New York, made short work of the feds' position and granted Perez' habeas petition.
But back to the original question: why punish a man for a crime he did not commit?